POLITICS-KENYA: New Constitution Takes Up Cudgels For Women

NAIROBI, May 25 2004 (IPS) - As the clock ticks closer to the deadline for introducing a new constitution in Kenya, Atsango Chesoni – for one – is filled with anticipation at the coming change.
The women’s rights activist and official at Bomas Katiba Watch says the country’s existing constitution discriminates against women, especially on the issue of property rights – and that change in this matter is long overdue. (“Katiba” is the Swahili word for constitution, while Bomas refers to the venue on the outskirts of the Kenyan capital, Nairobi, where constitutional negotiations took place.)

When President Mwai Kibaki took office at the end of Dec. 2002, he promised the country a new constitution within 100 days. This document is seen as a key part of efforts to improve governance in the East African nation, spur development and alleviate poverty. However, political wrangling later caused the deadline to be shifted to Jun. 30 this year.

“The old constitution has treated women as second class citizens,” says Chesoni. “For example, women have no right to matrimonial property, and many of them have suffered during the death of a spouse or in case of divorce or separation. The law also allows culture to frustrate women.” At present, the inheritance of property in Kenya is governed by customary law, which may prevent women from laying claim to their husbands’ belongings.

Maria Nekesa’s experience is typical in this regard. She lost all her property to her husband’s relatives when he died four years ago, and was left to resume her life from scratch – along with her two children.

“They snatched everything from me including our six acre piece of land, claiming that all property belonged to their son. They wanted me to be inherited by his younger brother and when I refused, they chased me and my children out of my matrimonial home,” Nekesa told IPS during a meeting of widows held recently in Nairobi.

Her efforts to seek government assistance did not bear much fruit. “I reported the matter to the area chief, but he turned me away saying it was a family matter. He told me to go and sort it out with my in-laws,” she adds.

IPS was unable to get hold of government statistics on the extent of this problem in Kenya. Women’s groups also say that coming up with a figure is difficult, because many cases go unreported. Everyone seems to agree, however, that a good many women find themselves in situations akin to that of Nekesa.

Section 77 of chapter seven of the draft constitution states that “The government shall define and keep under review a national land policy ensuring the discouragement of customs and practices that discriminate against the access of women to land.” Section 82 goes on to say: “A surviving spouse shall not be deprived of a reasonable provision out of the estate of a deceased spouse whether or not the spouse died having made a will.”

“If this draft was law today, women would not be disinherited by their relatives seeking to acquire their (women’s) property,” Ann Njogu, executive director of the Centre for Rights Education and Awareness, a women rights organisation in Nairobi, told IPS. It appears that wife inheritance – the practice whereby a widow can be obliged to marry a relative of her dead spouse – will also be discouraged under the new document.

However Ann Gathumbi, coordinator of the Coalition on Violence Against Women, cautions that having a revamped constitution is one thing – implementing it quite another. She told IPS it was unlikely that poor women in Kenya will find the means to challenge the behaviour of unscrupulous relatives in court – even with the backing of a new constitution.

Other ground-breaking proposals in the draft constitution include those for reducing presidential powers – and transferring these to a prime minister. The proposals have been the cause of bitter dissent in Kibaki’s National Rainbow Coalition government, where some appear to believe that the head of state is backing away from earlier pledges to support a weakened presidency. This has prompted some commentators to speculate about Kibaki’s commitment to implementing a new constitution.

“The new constitution was only by design. If the president was serious, he would have put up mechanisms in place to ensure that such a constitution was forthcoming,” remarks Mutahi Ngunyi, a political analyst.

Activists have pledged mass action in the event that a new constitution is not signed into law by the Jun. 30 deadline.

“We will do whatever we need to do as Kenyans to ensure that we have a new constitution in place. A fresh constitution is long overdue,” said Chesoni at a press conference on May 12.

The Kenya chapter of the Federation of Women Lawyers has also thrown its weight behind the promise of mass action.

“If nothing happens by June, then there will have to be a catalyst to cause it to happen,” Joyce Majiwa, the organisation’s chairwoman told IPS in a telephone interview. “We cannot go by the old laws which have ripped women off (concerning) their rights."